Representing an Injured Employee

There is more than one way to make a claim

BY J. TIMOTHY LOATS

J. Timothy Loats is a solo practitioner in Aurora, Illinois, specializing in the defense and prosecution of workers' compensation claims. He is deputy chair of the Workers' Compensation Committee of the General Practice Section of the ABA. He is also an instructor in employment law at Aurora University and Waubonsee Community College.

This article is based on a program held at the ABA Annual Meeting, co-sponsored by the Workers' Compensation Committee and the Labor and Employment Law Committee of the Section of Litigation, in which ten trial experts explored plaintiff and defense strategies for litigating multiple claims available to injured employees. Speakers included Laurie Ecker, Chicago; Jim Pocius, Scranton, Pennsylvania; Thomas Fishbein, Chicago; Jim Johnson, Philadelphia; James A. Burns, Jr., Chicago; Kristi Post, New Orleans; Joel D'Alba, Chicago; David Shaw, New Orleans; Arnold Rubin, Chicago; and Michael Leech, Chicago.

Mel Ingerer had worked for 18 years as a mechanic for Boffo Entertainment when he hurt his back lifting a coin box out of a slot machine on a Boffo riverboat. The riverboat was tied up at the dock. That was two years ago.

After the injury, Ingerer had back surgery and physical therapy, and he underwent work "hardening" in preparation for going back to his job. Eventually, he was able to return to work, but he had one permanent restriction: He couldn't lift anything that weighed more than 25 pounds. Unfortunately, the position of gaming machine mechanic, which Ingerer held at the time of his injury, had as one of its essential functions the ability to lift 75 pounds.

Boffo offered Ingerer a job on the third shift that didn't require heavy lifting. Under Ingerer's union contract, he had sufficient seniority to bid successfully for this permanent position, but he refused. Instead, he requested his old job on the first shift and an apprentice mechanic to do the heavy lifting for him. Boffo did not grant this accommodation.

Soon after, a permanent, first-shift position that didn't require heavy lifting became available, but Ingerer didn't have sufficient seniority to bid for it, and the union refused Boffo's request that it waive the seniority rules. So Boffo offered Ingerer the third-shift position again and, again, Ingerer refused to take it. In response, Boffo fired him. Now Ingerer has retained counsel and intends to file every claim possible against his former employer.

How many claims are possible? And which of those claims should Ingerer's lawyer pursue first? The answers will depend on a number of factors, including the particular state in which the claims will be filed and the exact location of the slot machine on which Ingerger was working when he was injured. The following are claims his lawyer will consider.

Workers' CompensationThe treatment of work injury claims depends on the laws of state in which they occur. Most state statutes contain provisions covering jurisdiction, notice, disability benefits, and medical benefits. Assume for now that Ingerer has a legitimate state workers' compensation claim. (Because the injury occurred on a boat, he may be able to claim damages under the federal Jones Act or Longshore Act, which this article will address later.)

Notice. One of the jurisdictional issues at the state level will be the time limitation on filing a claim. These limits vary greatly from state to state. From what we know about Ingerer, it is not clear whether he gave Boffo timely notice that he was filing. But we do know that neither his return to work nor his treatment by a physician would constitute notice.

Disability benefits. Under these benefits, Ingerer would receive regular payments--a set percentage of his average salary--during the time he is off work for surgery, physical therapy, and work hardening. If his state has a "wage loss" statute, he may not be entitled to any further benefits because Boffo offered him a new job at the same wage level. However, if Ingerer lives in a state that has a "specific loss" statute, he can receive payments for "permanent partial disability" due to the permanent restriction on heavy lifting.

In several states, claimants can choose to seek either specific or wage-loss benefits. If Ingerer lives in such a state, his firing may be irrelevant to a claim for specific loss, but very important to a claim for wage loss. Note also that despite his current job status, Ingerer may file for disability benefits. His being fired does not affect his right to receive these benefits, and neither would his getting a job with a new employer.

However, Ingerer's refusal to take a third-shift job with Boffo does affect his right to rehabilitation benefits. Many state compensation statutes provide rehabilitation and vocational training (including tuition and maintenance payments) to workers who have permanent restrictions due to job-related injuries.

Ingerer lost his eligibility for these benefits when he refused Boffo's offer of modified employment because it was inconvenient. Because he was offered the same wages and the same employee benefits, and he would have retained his seniority and union status, Ingerer's refusal to accept the new position would be considered unreasonable under any compensation statute.

Jones and Longshore ActsBecause of the booming riverboat gambling business--which has brought commercial boating to waterways that haven't seen any commerce for years--lawyers who specialize in workers' compensation cases have become newly aware of the federal admiralty statues. In summary (the issues are too complex to examine here), the Jones Act is a compensation statute that covers mariners, giving them the right to maintain an action for damages with the right to a trial by jury in federal court. The Longshore and Harbor Workers' Compensation Act covers workers on vessels that adjoin a wharf. This law involves a situs and status test that remains heavily litigated.

Claims under both of these acts are handled by the U.S. Department of Labor, Office of Workers' Compensation. If Ingerer's lawyer is uncertain about whether Ingerer has a claim under these acts, his or her best bet may be to file a federal claim under the Jones Act in federal court or with the U.S. Department of Labor, and a concurrent state workers' compensation claim. Although it may not be easy, coordination of these multiple claims, and likely multiple counsel, is important.

The relevant concerns under the Jones and Longshore Acts are the same as those under state statutes: evaluation of medical disability, the need for rehabilitation, the potential for lost wages, and the value of damages--the employer seeks to minimize disability and the claimant seeks to maximize it. However, the facts about where and how the accident occurred have more relevance under the federal statutes. Accordingly, it is important for counsel on both sides to visit to the accident site.

Americans with Disabilities ActIngerer's fate under the Americans with Disabilities Act (ADA) also is uncertain. If it is determined that his back injury permanently interferes with a major life function, then Boffo must decide what accommodation it should make pursuant to the ADA. To do so, Boffo must first define the necessary job functions of Ingerer's position at the time of the injury. The relevant one is the ability to lift 75 pounds, which Ingerer can no longer do.

Boffo must then decide if a reasonable accommodation can be made that would allow Ingerer to continue to work as a gaming machine mechanic (his former position) despite his inability to do the required lifting. As far as we know, Boffo identified no such reasonable accommodation, although Ingerer thought he did--the assignment of an apprentice to help him. This discrepancy may result in Ingerer's filing a claim with the EEOC and, ultimately, in federal court.

Interestingly, Boffo had no requirement under the ADA to offer Ingerer an alternate, light-duty job, and the offer may be considered a reasonable accommodation. Courts uniformly have held that employers have no duty to provide disabled workers with assistants who can help them meet essential lifting requirements. (Under the ADA, employers need only examine the specific requirements of the job held, or applied for; the fact that a disabled person cannot meet those requirements is legitimate grounds for his or her not keeping, or being given, the job.) Boffo's request that the union waive the seniority rules on Ingerer's behalf also would be seen as a reasonable accommodation.

Retaliatory Discharge/Wrongful TerminationAbsent a union contract, most workers are "at will" employees: They can be fired any time for any reason or no reason at all. One exception to this rule is the protection given by many state workers' compensation statutes to employees who are fired in retaliation for exercising their legal rights after a work-related injury.

Claims of wrongful termination are filed in state civil courts. The failure of the employee to file a workers' compensation claim before he or she is fired may defeat the wrongful termination claim in some states, but not in all. Damages for wrongful termination may include actual and punitive awards by juries.

In the case of Ingerer, his refusing to transfer from first to third shift makes it unlikely that he would win a wrongful termination claim, although there is nothing preventing him from filing such a claim.

For employers facing possible wrongful termination claims, it is important that they and their counsel give careful consideration to the costs and benefits of discharging an employee who been permanently disabled by a work-related injury. Note that some employers in this situation may be bound by the presence of a union contract and have no alternative but to discharge.

Union Grievance/ArbitrationBecause Boffo is a union shop, the union can seek arbitration via a grievance for Ingerer due to his discharge. It will be up to an arbitrator to decide whether there was a violation of the union contract or if Boffo had just cause to discharge Ingerer. Again, the dispute will center on Ingerer's refusal to accept reassignment to a third-shift job that met his lifting limitations.

For the most part, arbitrators do not look to outside statutes, such as the ADA, for guidance unless a union's contract refers to a particular contract within its four corners. However, many union agreements contain nondiscrimination clauses, which arbitrators interpret by consulting antidiscriminatory statutes and the accompanying court decisions.

The arbitrator in the dispute between Ingerer and Boffo would consider the same issues that would be examined under the ADA: If Boffo's offer of a position on the third shift was deemed reasonable accommodation, and Ingerer's refusal to accept it was deemed unreasonable, the discharge would be upheld. In addition, the union's refusal to waive seniority would certainly hurt its position in the arbitration.

Unemployment CompensationLike disability benefits, unemployment compensation varies from state to state. Hearings are administrative and often involve unrepresented parties on one or both sides.

For Ingerer, the relevant question is whether he should be disqualified from receiving unemployment compensation because his lack of a job is, in a sense, voluntary--he could have accepted the position on the third shift.

The general rule is that one who leaves work voluntarily without good cause attributable to the employer is ineligible for benefits. And there is considerable authority that a change in shift would not support a finding of good cause. Typically, good cause is found only when other factors are present, such as a decrease in pay, an increase in hours worked, or a lack of available child care.

Lawyers for employees in this situation must consider that collateral estoppel and/or res judicata may apply to decisions made by unemployment agencies. Even in states where there is no such application, prior inconsistent statements will likely be used against the employee. Counsel should carefully prepare the employee for the hearing and for the questions he or she might face under cross examination. It also is important for counsel to both employee and employer to attend the hearing.

A Little PerspectiveA simple set of facts--as simple as the made-up story of Ingerer--can lead to multiple claims. Competent counsel for either party must recognize all of these potential claims as well as how they might be defended. The failure to obtain available benefits or to avoid needless liability can be grounds for malpractice.

Employment law is statutory and, as such, is subject to frequent amendment. Radical changes in the controlling statutes are not uncommon. When in doubt about which claim(s) to pursue, don't hesitate to consult a lawyer who specializes in this area before advising your client.